United States Court of Appeals For the First Circuit

No. 21-1937

UNITED STATES OF AMERICA,

Appellee,

v.

HIRAM JOSÉ RUIZ-VALLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Gelpí, Lynch and Thompson, Circuit Judges.

Joanna E. LeRoy, Research & Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, Jackson B. Whetsel, Assistant Public Defender, and Kevin E. Lerman, Research & Writing Attorney, were on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

May 26, 2023 GELPÍ, Circuit Judge. In 2016, Hiram José Ruiz-Valle

("Ruiz-Valle") pleaded guilty to being a felon in possession of a

firearm, in violation of

(g)(1), 924(a)(2).

Following his initial release from prison, Ruiz-Valle's supervised

release has been revoked four times.

Ruiz-Valle now appeals his latest revocation sentence on

the ground that the district court erred by imposing in violation

of

(e)(3) a twenty-four-month term of

reimprisonment, and, by further imposing in violation of

(h) a twelve-month term of supervised release to follow.1

1 We quote these statutes at some length because their terms are of significance to the disposition of the issue before us. Section 3583(e)(3) provides that a district court may "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release" upon a finding "by a preponderance of the evidence that the defendant violated a condition of supervised release." But it also says (emphasis ours) that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case. Section 3583(h) states that when a supervised-release term "is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment." But it also states (emphasis ours) that "[t]he length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for

- 2 - Moreover, he argues that § 3583(e)(3) is unconstitutional as

applied to him.

We affirm the sentence of reimprisonment imposed upon

revocation; however, vacate the subsequent supervised-release

term.

I. BACKGROUND

Ruiz-Valle pleaded guilty to possessing a firearm as a

convicted felon, in violation of

(g)(1),

924(a)(2). This offense carried a ten-year maximum imprisonment

sentence,2 and is a Class C felony per

(a)(3) --

for which the maximum supervised-release term is 36 months per

(b)(2). The district court ultimately sentenced Ruiz-

Valle to an eighteen-month term of imprisonment, followed by a

three-year supervised-release term.

We next summarize the disposition of Ruiz-Valle's

sentences following his multiple supervised release revocations.

the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." The importance of the highlighted language will be addressed later. 2 References and citations to section 924(a)(2) in this

opinion are to the provision as it existed at the time of Ruiz-Valle's charged conduct. These provisions have since been amended by the Bipartisan Safer Communities Act,

,

, 1329 (2022), which transposed the penalty provision for section 922(g) from section 924(a)(2) to 924(a)(8), providing for a longer maximum period of imprisonment. See United States v. Minor,

, 118 n.4 (1st Cir. 2023) (en banc).

- 3 - Given that the first three of these are not the subject of this

appeal, we only indicate the outcome of each without tarrying into

further detail.

Ruiz-Valle's first revocation, in January 2019, resulted

in reimprisonment of six months along with a new supervised-release

term of three years. His second revocation, in October 2019,

resulted in another six-month imprisonment term plus two years of

supervised release. The third revocation, in December 2020,

resulted in ten months imprisonment and two years of supervised

release.

Ruiz-Valle was released from prison in May 2021. By

then and upon completion of his third revocation sentence,

Ruiz-Valle had collectively served twenty-two months in prison for

his several violations. In August 2021, the U.S. Probation Office

sought his arrest for new supervised-release violations, to wit,

testing positive for cocaine use, failing to comply with his drug-

testing condition, failing to appear at his counseling sessions,

and breaching his family's peace as charged in a criminal

complaint.

At his fourth revocation hearing , defense counsel told

the district court that he saw "three possible" sentencing

"solutions" to Ruiz-Valle's latest supervised-release infractions:

(1) "four months" in prison and "more treatment," (2) "two years"

in prison and "no more supervision," or (3) "one year" in prison

- 4 - and "no further supervision." Ruiz-Valle's sentencing memo

requested option (1). But at the hearing his lawyer requested a

"one year" prison sentence, with "no further supervision." In

defense counsel's view, sentencing Ruiz-Valle to two years in

prison -- after his client had already served twenty-two months in

prison on his earlier revocations -- would be "excessive." But he

also said that "before you would accumulate" already-served prison

"time, now you don't accumulate" it.

Opposing the defense's request, the government stated

that it did not want Ruiz-Valle out "in a year" because he had "no

interest in rehabilitating himself" and so releasing him too soon

might lead to a "negative outcome."

The district court classified Ruiz-Valle's violations as

Grade C and his Criminal History Category as II, and calculated an

advisory sentencing range of four to ten months imprisonment. The

court, however, varied upward and imposed the statutory maximum

sentence of two years in prison followed by one additional year of

supervised release.

Ruiz-Valle objected to the sentence imposed, arguing it

was procedurally and substantively unreasonable. He first

insisted that the district court "cannot impose supervision after

it imposes [the] statutory maximum" because the sentence

"exceeds . . . what is allowed by law" and offends "due process."

He next claimed that the statutory-maximum prison term was

- 5 - "excessive" and that "the lack of accumulation of the . . . prior

sentences imposing revocation, again, violated his right to have

a final sentence that is limited to the statutory maximum of . .

. imprisonment on a revocation." He added that "any sentence over

a total accumulated of 24 months . . . should not be allowed."

And he concluded that "any sentence over a total accumulated of

twenty-four months . . . should not be allowed.

The district court noted Ruiz-Valle's post-sentence

objections. The government took no position as to the same. Ruiz-

Valle timely appealed.

II. DISCUSSION

Ruiz-Valle asserts that the district court erred under

§ 3583(e)(3) by imposing a twenty-four-month term of

reimprisonment without deducting the cumulative prison time served

for all four violations. Alternatively, he argues that if

§ 3583(e)(3) indeed authorizes his current twenty-four-month

prison term, the same is unconstitutional. He then claims that

the district court could not impose the new twelve-month term of

supervised release under § 3583(h). We address each argument

seriatim.

A. REIMPRISONMENT UPON REVOCATION

Section 3583(e)(3) pertinently provides (emphasis ours)

that "[a] defendant whose term is revoked under this paragraph may

not be required to serve on any such revocation more than . . . 2

- 6 - years in prison if such offense is a class C . . . felony." As

Ruiz-Valle sees it, the district court had to -- but did not --

"subtract the aggregate length of prior imprisonment terms imposed

upon revocation of supervised release when calculating the

statutory maximum" for his last revocation.

A dicta of ours indicates that Congress's 2003 addition

of the phrase "on any such revocation" meant that the provision's

statutory caps on post-revocation prison terms apply "afresh” to

each new revocation. See United States v. Tapia-Escalera,

(1st Cir. 2004).3 And "every court of appeals

to consider" whether the statutory caps reset with each new

revocation "has determined" that the 2003 amendment abolishes "the

credit for terms of imprisonment resulting from prior

revocations." United States v. Sears,

(6th Cir.

2022) (quotation marks omitted and collecting cases from the

Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits);

see also United States v. Cunningham,

(11th

Cir. 2015) (per curiam) ("hold[ing], as have each of the circuits

that have examined the question, that upon each revocation of

supervised release a defendant may be sentenced to the felony class

limits contained within § 3583(e)(3) without regard to

3Such statement is dicta because Tapia-Escalera addressed the proper reading of § 3583(e)(3)'s pre-2003 text. See id. at 188.

- 7 - imprisonment previously served for revocation of supervised

release").

Ruiz-Valle responds with page after page of argument

that the district court (and those other circuits, apparently)

erred by misunderstanding § 3583(e)(3)'s text, context, and

legislative history -- committing a constitutional error to boot.

But the insurmountable problem for him is that he waived these

arguments by arguing the opposite below.4 Noting that the

"statutory maximum" prison sentence for his revocation was "2

years", Ruiz-Valle repeatedly told the district court that it could

give him the maximum term. He did say that a new prison term of

"two years after he's already served 22 months in other revocations

. . . could be excessive" -- a claim he made after discussing his

personal issues. But he conceded that he could not "accumulate"

against the statutory maximum the "time" he had already spent in

prison on the prior revocations. And by telling the district court

that it could sentence him to 24 months in prison on his current

revocation, he waived any claim that the court could not do so --

on either statutory or constitutional grounds. See United States

v. Chen,

(1st Cir. 2021) (explaining that a party

waives an issue by "purposefully abandon[ing] it, either expressly

4 The Federal Public Defender for the District of Puerto Rico has represented Ruiz-Valle before the district court and now before us.

- 8 - or by taking a contrary position" in the district court); see

(adding that "[a]n issue may also be waived if counsel's own

conduct invited the [district court's] ruling") see also United

States v. Gates,

(1st Cir. 2013) (emphasizing that

"a party cannot concede an issue in the district court and later,

on appeal, attempt to repudiate that concession and resurrect the

issue").

Arguing against this conclusion, Ruiz-Valle reads his

counsel's later statements as preserving these error

claims-- statements like the "lack of accumulation of

the . . . prior sentences imposing revocation, again, violated his

right to have a final sentence that is limited to the statutory

maximum of . . . imprisonment on a revocation" and that "any

sentence over a total accumulated of 24 months . . . should not be

allowed." We are unconvinced.

Counsel did not develop this "lack of accumulation" and

"total accumulated" statements into an objection that the court

could not impose the 24-month prison term. And counsel's words

are not specific enough to preserve the error claims, particularly

since he conceded just moments earlier that he could not

"accumulate" against the maximum term the "time" he had served in

prison on his prior revocations. What is more, one can read

counsel's statements as saying the district court could not impose

supervised release after sentencing Ruiz-Valle to that prison

- 9 - term. All of which cuts against Ruiz-Valle's preservation theory.

That is because these statements were not "sufficiently specific

to call to the district court's attention" that the prison term

violated § 3583(e)(3). See United States v. Espinoza-Roque,

, 36 (1st Cir. 2022) (quotation marks omitted). And

"[i]ssues not squarely raised in the district court will not be

entertained on appeal." See United States v. Barnett,

(1st Cir. 1993) (emphasizing that "[j]udges are not

expected to be mindreaders" so "a litigant has obligation to spell

out his arguments squarely and distinctly or else forever hold his

peace" (quotation marks omitted)). Ruiz-Valle also offers no

persuasive reason for relaxing the raise-or-waive rule (as it is

known).

The bottom line is that Ruiz-Valle did not preserve any

argument -- statutory or constitutional -- regarding the district

court's sentence of imprisonment vis-a-vis § 3583(e)(3). Hence

whatever views we may have on these precise issues must be left

for another case on another day.

B. SUPERVISED RELEASE ON REVOCATION

Section 3583(h) relevantly provides (emphasis ours) that

when the district court imposes a new term of supervised release

"after imprisonment" upon revocation, that term "shall not exceed

the term of supervised release authorized by statute for the

offense that resulted in the original term of supervised release,

- 10 - less any term of imprisonment that was imposed upon revocation."

No one disputes that Ruiz-Valle's § 922(g)(1) violation is the

crime underlying his original supervised-release term; that this

violation is a Class C felony; and that the maximum authorized

supervised-release term for that crime was 36 months. Because the

district court sentenced him to an "aggregate term of [46] months"

in prison on all his revocations, and because 46 months "exceeds"

36 months, Ruiz-Valle argues that the court "erred in imposing

additional supervision."

Citing United States v. Maxwell,

(4th Cir.

2002), the government in its brief "concedes that once the district

court sentenced Ruiz[-Valle] to 36 months of imprisonment on his

revocations in this case, the court erred under § 3583(h) by

imposing additional supervised release." The government insists,

however, that Ruiz-Valle invited the error he now tries to

challenge. Cutting through the parties' thrust and parry, we note

that Ruiz-Valle argued -- ultimately and concisely -- for "no

further supervision" and so reject the government's invited-error

theory.

"[W]e ordinarily review sentences imposed following

revocation of supervised release for abuse of discretion." United

States v. Rodríguez-Meléndez,

(1st Cir. 2016).

However, in this instance, even under plain-error review (which is

- 11 - not defendant-friendly), Ruiz-Valle prevails.5 See United States

v. Tapia-Escalera,

(1st Cir. 2004).

Every circuit to consider the question agrees that when

imposing a term of supervised release following revocation of a

previous term of supervised release, § 3583(h) requires that the

term be reduced by all post-revocation terms of imprisonment

imposed with respect to the same underlying offense. See, e.g.,

United States v. Rodríguez,

(2d Cir. 2014);

United States v. Zoran,

(8th Cir. 2012); United

States v. Hernández,

(10th Cir. 2011); United

States v. Vera,

(5th Cir. 2008); Maxwell,

. The rationale is straightforward:

When the word "any" is properly read in its § 3583(h) statutory context, Webster's Third New International Dictionary provides that the word "any" means "all." Specifically, Webster's Third New International Dictionary provides that when the word "any" is "used as a function word to indicate the maximum or whole of a number or quantity," for example, "give me [any] letters you find" and "he needs

5 Plain-error review requires the appellant to show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Rivera,

(1st Cir. 2022) (quotation marks omitted). The parties sparred fiercely over whether Ruiz-Valle waived any plain-error argument by not addressing plain-error in his opening brief. But the government now concedes — based on case-specific circumstances — that if waiver occurred, we should excuse it because "justice so requires." United States v. Torres-Rosario,

(1st Cir. 2011). Accepting the government's concession, we go the "justice so requires" route.

- 12 - [any] help he can get," the word "any" means "all." Here, the word "any" in the phrase "less any term of imprisonment that was imposed upon revocation of supervised release," § 3583(h) (emphasis added), is obviously used as a function word to indicate the maximum or whole of a number or quantity just as the word "any" is used in the dictionary examples quoted above.

Maxwell,

(some citations omitted). "Thus, a plain

reading of the reference to 'any term of imprisonment' in the

statute must include the prison term in the current revocation

sentence together with all prison time served under any prior

revocation sentences imposed with respect to the same underlying

offense." Rodríguez,

. Speaking for the Tenth

Circuit, then-Judge (now-Justice) Gorsuch explained that

§ 3583(h)'s "language -- left unamended in 2003 and thus quite

unlike § 3583(e)(3) -- does (expressly) require a district court

to aggregate and credit all prior prison terms when determining

the maximum amount of supervised release it can impose for any

revocation." See Hernández,

(second emphasis

added). "So as a defendant serves . . . more time in prison for

each revocation, a district court can impose . . . less time on

supervised release."

The government's main response is that absent

controlling cases on his side (from the First Circuit or Supreme

Court, which all agree he does not have), Ruiz-Valle must show

that his reading of § 3583(h) "is compelled by the statute's

- 13 - language itself." See United States v. Caraballo-Rodriguez,

(1st Cir. 2007). The government thinks that he has

not made this showing. We do. After all, Rodríguez and Maxwell

both held on plain-error review that a "plain" reading of § 3583(h)

requires aggregation. Rodríguez,

; Maxwell,

. Maxwell actually called this an "obvious[]" reading.

See

. We agree. And we also find the government's

position here passing strange, seeing how it conceded in Maxwell

that this kind of error is "plain for purposes of establishing"

the clear-or-obvious "prong" of plain-error review. Compare

(noting that "[t]he phrase 'less any term of

imprisonment that was imposed upon revocation of supervised

release'" in § 3583(h)'s last sentence "is not reasonably

susceptible to an interpretation which . . . ignore[s] any prior

terms of imprisonment imposed as part of prior postrevocation

sentences, for the same underlying offense"), with id. at 339

(noting that "[a]lthough the government opposed Maxwell's argument

in its appellate brief, at oral argument, the government candidly

and forthrightly conceded all issues in the appeal in favor of

Maxwell").6

That the plain or obvious reading of the statute supports 6

plain error distinguishes Ruiz-Valle's case from Caraballo-Rodríguez, an opinion the government relies on. See

(observing that "[t]he dictionary definitions" of key statutory terms "do not prove [defendant's] claim"). It also

- 14 - III. CONCLUSION

The district court's prison sentence upon revocation is

AFFIRMED, and the imposition of the one-year supervised-release

term to follow is REVERSED. Accordingly, we REMAND to the district

court for the limited purpose of entering judgment without any

additional term of supervised release in accordance with this

opinion.

distinguishes his case from United States v. Richards, another opinion the government cites to. See

(1st Cir. 2000) (concluding that an "interpretation" pressed on appeal was not "obvious" under relevant statutory language).

- 15 -